Regulation EU No. 650/2012 Applicable Law Article 22 – Choice of Law Bucharest, 19- 20 September...

Regulation EU No. 650/2012

Applicable LawArticle 22 – Choice of Law

Bucharest, 19- 20 September 2013Family Law and Successions in Light of the EU Law

Europe for notaries, notaries for Europe

Speaker: Tsertsigianni Elena – Greek Notariat

A client asks for your help when drafting his WillHe has dual nationalityHe owns real estate properties in different counties

than the country of his habitual residence

Case Study:

Can he choose which countries’ law will govern his succession?

Bucharest, 19-20 September 2013 - Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012

EU regulation 650/2012 about succession addresses, among various

matters of succession, such cases, which are more and more common due to the increasing mobility of citizens inside and outside the E.U. and gives to the person

the possibility to organizehis succession in advance by choosing the

law applicable, under the relevant provisions.


According to the transitional provisions of Article 83:1.This Regulation shall apply to the succession of

persons who die on or after 17 August 2015.

2. Where the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice shall be valid if it meets the conditions laid down in

Chapter III or if it is valid in application of the rules of private international law which were in force, at the time the choice was made, in the State in which the deceased had his habitual residence or in any of the States whose

nationality he possessed.


Applicable law The Regulation has universal application, any law specified by the Regulation shall be applied whether or not it is the law of a Member State (Article 20). So

a person can choose as the applicable law for his succession the law of a third State.

The general rule set by article 21 is that the law of the State in which the deceased had his habitual

residence at the time of death is the law applicable to the succession as a whole.


Applicable law As an exception, article 21, paragraph 2

provides that if it is evident from all the circumstances of a specific case that, at

the time of death the deceased was manifestly more closely connected with a State other than the State where he had

his habitual residence at the time of death, the law applicable to the succession shall

be the law of that other State.


• 1. A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.

• A person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice or at the time of death.

Article 22 -Choice of law


• 2. The choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition.

• 3. The substantive validity of the act whereby the choice of law was made shall be governed by the chosen law.


• 4. Any modification or revocation of the choice of law shall meet the requirements as to form for the modification or revocation of a disposition of property upon death.


Paragraph 1 A person can choose as the law to rule his

succession as a whole the law of the State whose nationality he possesses either at the time of making the choice or at the time of death.

If someone possesses multiple nationalities, he can choose the law of any of the States whose nationality he possesses either at the time of making the choice or at the time of death.


Paragraph 1 So, instead of the general rule of article 21 where the

habitual residence at the time of death defines the law applicable to the succession, by article 22 the person can choose as applicable to his succession as a whole the law of the State whose nationality he possesses. The choice is limited by the Regulation though to the law of a State of (one of) his nationality (-ies) in order to ensure a connection between the deceased and the law chosen and to avoid a law being chosen with the intention of depriving the legitimate rights from persons entitled to a reserved share.


Paragraph 2

In order for the choice of the person to be applied, there is a specific form to be followed. It has to be made expressly and not in any kind of document, even authentic, but in a declaration in the form of a disposition of property upon death or it has to be demonstrated by the terms of such a disposition and not in any other form or manner.


Paragraph 2

The choice of law could be regarded as demonstrated by a disposition of property upon death where, for instance, the deceased had referred in his disposition to specific provisions of the law of the State of his nationality or where he had otherwise mentioned that law.


Paragraph 3

The choice of law also defines the substantive validity of the act of choice. All matters that have to do with the substantive validity of the act with which the choice of law was made, shall be ruled by the chosen law.


Paragraph 4

• In order to proceed to any modifications or revocations of the choice of law, this cannot be done in an informal manner but again a specific form must be used. Modifications or revocations must meet all the requirements in form for the modification or revocation of a disposition of property upon death.


Case studies for the application of article 22 (death on or after 17/8/2015)

• Mrs. Sergiu of romanian nationality, habitual resident of Athens Greece, dies having real estate property in Romania, Bulgaria, Hungary and Greece.She leaves a will choosing the romanian law to be applied to her property. Is this valid?

Yes, the romanian law will be applicable to her succession as a whole.


• Mr. Brown, of english and belgian nationality, habitual resident of Bath England, dies leaving movable and immovable property in England, Spain and Italy. In his will he chooses english law to be applied to his succession. Is this valid?

Yes, english law will be applicable to his succession as a whole.


• Mr. Garcia, of mexican and french nationality, habitual resident of Barcelona Spain, dies leaving movable and immovable property in France, Mexico and Portugal. In his will he chooses mexican law to be applied to his succession. Is this valid?

Yes, mexican law will be applicable to his succession as a whole.


Regulation EU No. 650/2012

Applicable LawArticle 22 – Choice of Law

Bucharest, 19-20 September 2013Family Law and Successions in Light of the EU Law

Europe for notaries, notaries for Europe

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Regulation EU No. 650/2012 Applicable Law Article 22 – Choice of Law Bucharest, 19- 20 September...

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